Why Would the Justice Department Be Investigating Blue Bell Now?

For a second there, it seemed like Blue Bell was really going to put the whole listeria outbreak behind it.

Ever since Blue Bell restarted production back in August, both the officials running the "little creamery in Brenham" and the public have treated the return of Blue Bell ice cream to grocery store shelves as a grand rebirth for the company. It was almost as if the whole listeria thing had never happened.

Almost.

Blue Bell may still be in the midst of a comeback tour, but the company is now facing a U.S. Department of Justice investigation over the listeria outbreak earlier this year that forced the company to recall all of its products and almost sent Blue Bell over the financial edge. According to a CBS News report, the Justice Department is trying to figure out what Blue Bell management knew about the potentially deadly hazards in their plants and when they knew it.

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For those with short memories, the Brenham-based company was forced to issue its first recall in 108 years of business in March because of a listeria outbreak in its facilities, as we wrote in our July cover story, "A Sticky Mess." Blue Bell officials followed up with a series of small recalls as efforts to clean the factories and get listeria out of the production line failed repeatedly. Finally, Blue Bell’s president and CEO, Paul Kruse, pulled all Blue Bell products off the market on April 20. By then it was known that ten people in four states (Arizona, Oklahoma, Kansas and Texas) had contracted listeria, and three of them had died. FDA officials also learned through genome sequencing of the disease samples that Blue Bell ice cream had likely been making people sick with listeria since 2010.

Listeria is nasty stuff, a pathogen that can be found almost everywhere, including in soil, water and food, and unlike other bacteria. It has evolved so that it thrives in cold, moist areas like refrigerators and ice cream factories. FDA investigators discovered over the course of their examination of Blue Bell that surfaces at the company's facilities had been testing positive for listeria for years, but Blue Bell never tested the ice cream itself for the bacteria.

A U.S. Food and Drug Administration investigation subsequently revealed Blue Bell facilities had been testing positive for listeria since 2013. Starting in 2013, Blue Bell’s records in Broken Arrow show that listeria was found on samples taken from the “non-food contact areas” on equipment used to make ice cream and in the processing room and the kitchen. The floor in front of a freezer tested positive for listeria in 2013, 2014 and 2015. Listeria was also found on a catwalk behind a flavor tank in 2013 and 2014. Each time an area tested positive, Blue Bell employees cleaned and sanitized the space. The FDA report rather dryly noted that Blue Bell officials “failed to demonstrate that [their] cleaning and sanitizing program is effective in controlling recurring microbiological contaminations” since the listeria was never successfully removed.

On top of that, the FDA investigation found that even though Blue Bell had a “plant environmental testing plan” in which a private laboratory regularly examined swabs from the factories to make sure the buildings were free of pathogens, the tests were conducted only in areas of the factories that didn't have direct contact with the ice cream. It’s still unclear why Blue Bell officials never tested equipment and surfaces that touched frozen desserts or why they didn’t start checking the ice cream after listeria showed up in test results.

Ultimately, the FDA found listeria at all three plants, located in Sylacauga, Alabama; Broken Arrow, Oklahoma; and Brenham. The company shut the plants down to clean and sanitize its three factories until there were no more traces of listeria and to reconfigure the facilities to eliminate conditions that have allowed listeria to grow and thrive in the factories. Still, the company was circling the drain until Fort Worth oil man Sid Bass stepped in with an injection of $125 million this summer in exchange for a one-third stake in the company.

And for a little while, despite the OSHA reports of worker injuries and the allegations of unsanitary conditions that reportedly left Blue Bell's factories incredibly vulnerable to contamination, it looked like Blue Bell was going to bounce right back. In fact, it seemed likely that the company would simply hire back some of the workers who had been laid off, restart the factories and go back to putting ice cream on the shelves without any real consequences. Sure, there was a federal lawsuit filed by David Shockley, a man who was working at an elderly care center in Houston and regularly eating the ice cream when he became ill with what was determined to be listeria meningitis in October 2013. And of course Blue Bell had been forced to furlough 1,400 employees and lay off about 1,450 from its 3,900-person workforce. But despite all that, the public has been remarkably forgiving, all three factories are now up and running and Blue Bell products are slated to be back on shelves in 15 states by the end of January.

But that was before the Justice Department reportedly got involved. Now, a lot is going to hinge on what Blue Bell officials knew about the potentially contaminated products and when they knew it.

So far neither the feds nor Blue Bell have confirmed or denied the investigation into the company. However, considering who's spearheading the investigation, Blue Bell management could be facing some pretty serious allegations.

The probe is being led by the DOJ's Consumer Protection Branch, the same unit that just finished prosecuting Peanut Corporation of America executives for a 2009 salmonella outbreak that ultimately resulted in 700 reported cases of salmonella in 46 states, according to Food Safety News. In that case, the feds uncovered evidence that Stewart Parnell, PCA’s executive officer, sent emails with orders to “just ship em” when he knew peanut products were contaminated with salmonella. Parnell and other PCA executives were convicted by a federal jury in September 2014 "for their roles in a conspiracy to defraud their customers by shipping salmonella-positive peanut products before the results of microbiological testing were received and falsifying microbiological test results," according to the DOJ.

In September of this year, Parnell was sentenced to 28 years in prison, and his peanut broker brother was sentenced to 20 years, along with a handful of other PCA executives who were sentenced to prison in the largest criminal sentence ever received in a food safety case, according to the DOJ.